Monthly Archives: May 2013

In an interview with Phoenix television station KSAZ just moments after the jury returned their verdict, thirty-two year old Jodi Arias had the audacity to say, “I believe death is the ultimate freedom, so I’d rather just have my freedom as soon as I can get it…I would much rather die sooner than later.” Unfortunately, Jodi, you lost your freedom when the jury convicted you of first-degree murder. Your fate lies in the hands of the jury.

Yesterday, an Arizona jury convicted Arias of first-degree murder for stabbing her ex-boyfriend Travis Alexander twenty times, shooting him in the face, and cutting his neck, nearly decapitating him back in 2008. If the jury finds that ‘the murder was committed in an especially heinous, cruel, or depraved manner,’ Arias could face the death penalty. If they are unable to establish at least one aggravating circumstance, Arias would face the dreaded life in prison sentence.

I’m usually not one to express my opinion, but I was flabbergasted when I read her statement regarding her punishment preference. Who cares what her preference is? Not only did she commit murder. She committed it in a horrific manner. How can anyone convicted of such a heinous crime expect his or her “freedom?” All I could think when I saw Arias’ statement was “I hope the jury gives her exactly what she doesn’t want: life in prison.”

Last month Arias’ attorney filed a motion to have jury members sequestered, stating to the judge ‘The court asks the question of the jurors every morning, “Have you seen anything on the media?” No one raises their hand…To believe that to be true is to believe an absolute fiction. It is a fairytale to assume that this jury is not hearing any of this. It is all over the news, be it local or national.’ The judge denied the motion urging the jurors to avoid all media coverage of the trial. However, if I was a member of the jury and accidentally saw or heard Arias’ statement, I would find it extremely difficult to cast it aside and determine her punishment solely on the heinousness of her crime. Every fiber of my being would want to give her a lifetime in prison punished by her own thoughts and feelings.

After a bomb threat at the courthouse where the trial was being held and the rescheduling of the aggravation phase of the trial (where the jury will determine whether or not the death penalty may be imposed) today, we will have to wait until next Wednesday for the jury to begin the process to determine if Jodi Arias will get her wish.

Today the 9th Circuit upheld a California District Court determination that Righthaven failed to have standing to sue on copyrights it acquired. Congrats go out to my good friends Marc Randazza and Jay DeVoy for their awesome job on this case.

The 9th Circuit determined the agreements assigning Righthaven LLC the bare right to sue for infringement of newspaper articles, without the transfer of any associated exclusive rights in the articles, did not confer standing to Righthaven to sue.

Underlying facts:

Plaintiff Righthaven LLC was founded, according to its charter, to identify copyright infringements on behalf of third parties, receive “limited, revocable assignment[s]” of those copyrights, and then sue the infringers.

Righthaven was not the original owner of the copyrights in these articles. Stephens Media LLC, the company that owns the Las Vegas Review-Journal, held them at the time defendants posted the articles. After the alleged infringements occurred, but before Righthaven filed these suits, Stephens Media and Righthaven executed a copyright assignment agreement for each article. Each copyright assignment provided that, “subject to [Stephens Media’s] rights of reversion,” Stephens Media granted to Righthaven “all copyrights requisite to have Righthaven recognized as the copyright owner of the Work for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present, and future infringements of the copyright . . .in and to the Work.”

Righthaven and Stephens Media had previously entered into a Strategic Alliance Agreement (“SAA”), however, that controlled what Righthaven could do with any copyrights assigned to it. After assignment of a copyright, Righthaven was to search for instances of infringement. When Righthaven found an infringement, it could pursue the infringer, but that right was subject to Stephens Media’s veto.

If Righthaven did not obtain a settlement or initiate litigation, it had to reassign the copyright to Stephens Media. Righthaven was required to split any recovery it received with Stephens Media.

The SAA also placed sharp limits on what Righthaven could do with any assigned copyright. Righthaven had no right to exploit the copyrights or participate in any royalties.

Stephens Media retained “an exclusive license” to exploit the copyrights “for any lawful purpose whatsoever,” and to the extent that Righthaven’s pursuit of infringement would “in any manner” diminish Stephens Media’s right to exploit the assigned copyrights, Righthaven granted a license to Stephens Media “to the greatest extent permitted by law so that Stephens Media shall have unfettered and exclusive ability” to exploit its copyrights. Moreover, by providing Righthaven thirty days prior notice, Stephens Media could revert the ownership of any assigned copyright back to itself.

After Righthaven filed suit against [the defendants], each defendant filed a motion to dismiss for lack of standing. Righthaven and Stephens Media subsequently executed a “Clarification and Amendment to Strategic Alliance Agreement.” The agreement purported to clarify that the parties’ intent in entering the SAA was to “convey all ownership rights in and to any identified Work to Righthaven through a Copyright Assignment so that Righthaven would be the rightful owner of the identified Work.”

They say justice is blind: but ideally she is not deaf. At least that is what Steven Tyler is hoping. The lead singer of Aerosmith, along with fellow rocker Mick Fleetwood of Fleetwood Mac, testified on February 8, 2013, before a Hawaii Senate hearing in support of Hawaii S.B. 465, otherwise known as The Steven Tyler Act.

The bill, written by Tyler’s entertainment attorney, Dina LaPlot, and introduced by Democratic Hawaiian State Senator Kalani English, provides for a civil cause of action for invasion of privacy in addition to the current physical invasion of privacy in the State of Hawaii. The Tyler Act was recently amended by the Hawaii Senate Judiciary and Labor Committee to strongly resemble the California Anti-Paparazzi Law (California Civil Code 1708.8). California is the first, and only state to pass anti-paparazzi legislation. The California legislation was signed into law under then Governor and former celebrity Arnold Schwarzenegger and enacted on January 1, 1999.

Proponents for the Hawaii Privacy Bill say that it will help protect vacationing celebrities from overzealous paparazzi and therefore will encourage celebrities to vacation in Hawaii. If enacted, the new law will make a person liable for civil action resulting in general, special and punitive damages equal to three times the amount of general and special damages combined if a person engages in constructive invasion of privacy. Under the act, “A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”

Fellow celebrities, such as Neil Diamond, Avril Lavigne, Brittney Spears, and Tommy Lee among others, showed their support for the bill by sending individual written statements, all with the same content, to the Hawaii State Senate. The group wrote, “Enacting SB465 would provide me and other public figures with a peace of mind that is nearly impossible to find in Hawaii because of the rampant paparazzi”.

The Hawaiian Attorney General, the ACLU of Hawaii, the Motion Picture Association of America and some local citizens oppose the legislation, saying the bill violates the First Amendment of the United States Constitution and Article 1, Section 4 of the Hawaii Constitution; is overbroad and unnecessary; and will have a chilling effect on legitimate press coverage. Laurie Temple of the Hawaii chapter of the ACLU wrote, “Current state laws regarding trespass, invasion of privacy, and harassment, e.g. can more than handle the privacy, free speech and safety concerns of Hawaii’s residents and visitors.” In their memo to address First Amendment concerns regarding the publication of the illegally obtained pictures, the Motion Picture Association citied New York Times Co. v. United States, 403 U.S. 713 (1971) which established the right of a newspaper to publish knowingly illegally stolen materials and Vartnicki et al. v. Vopper, et al., 532 U.S. 514, at 534 (2001) which held that illegally intercepted communications were protected by the First Amendment.

Tyler’s attorney, Dina LaPolt, defended the legislation and its First Amendment constitutionality, citing Time, Inc v. Hill (1967) saying, “the Supreme Court of the United States held that the action of intrusion (i.e. paparazzi constructively invading a public figure’s privacy) does not itself raise First Amendment concerns because it does not involve speech or other expression.”

The legislation easily passed the Senate, but is now encountering problems in the House of Representatives, who are essentially telling Tyler to “Dream On”. (Sorry, you knew there had to be at least one silly Aerosmith pun in a blog that focuses on Steven Tyler) Rep. Angus McKelvey who is the head of the Hawaiian Consumer Protection Committee is quoted as telling a representative from the Associated Press, “There is zero support for that legislation in the House of Representatives”. The bill seems to be stalling in committee. Commenting on the likelihood of the House committee leaders putting in a joint request to the Speaker of the House to move the bill forward, McKelvey commented, “There is a better chance of people flapping their arms and flying from Lanai to Maui.” (Well, there probably will be no backstage passes in his future)

Although it is currently stalled, the legislation may not be officially dead. It may be the “Same Old Song and Dance”(Ugh, sorry again) for the legislation in the future. When the Senate Judiciary and Labor Committee revised the original version of the bill, they changed the effective date from July 1, 2013 to July 1, 2050 to allow time for further discussion on the bill. “I was very surprised we got out of the Senate on the first run,” LaPolt said. “If it had passed through the House, I would have been shocked.” For Tyler and LaPolt, at least the publicity generated by the legislation has no doubt been a “Sweet Emotion”. (not sorry on that one!)